1. This appeal has arisen out of a suit for ejectment of a sub-tenant and for mesne profits. The defendant originally held the land under a kole karsha kabuliyat for nine years which he executed in favour of Mr. John Louis. He got a renewal of the lease in 1320 executing a fresh kabuliyat for nine years and paid rent up to 1327 B. E. for the land and for three years to the plaintiff to whom Mr. John Louis had transferred his interest in 1325 corresponding to 1918. On the termination of the lease in 1922 the plaintiff asked the defendant to quit possession and had a notice served upon him. In the trial Court the suit was decreed. The plaintiff's title as claimed was declared and it was ordered that she should recover khas possession after eviction of the defendant.
2. In the appellate Court the appeal was allowed and the prayer for khas possession was dismissed. The plaintiff's title to the land was declared and it was declared that the defendant was her ten. ant. The appellant urges that the learned Subordinate Judge in the Court of appeal below erred in law in applying the provisions of Act 4 of 1928 to this case inasmuch as the suit was filed in October 1928 whereas that Act did not come into force until 21st February 1929 and the defendant was holding the land as an under-raiyat and inasmuch as it is admitted that the previous Act is applicable to this case. In these circumstances the Court of appeal below was certainly wrong in allowing the appeal on the ground on which it was allowed inasmuch as under the old Act, which was applicable, the landlord is entitled to eject the tenant on the expiry of his lease. However the decree of the Court below has been assailed on the ground that as the defendant had been let into possession by the predecessor of the plaintiff he was not entitled to deny his landlord's title as he seeks now to do. For the respondent it has been urged in as much as the landlord's interest was not transferable he was not entitled to transfer it to the present plaintiff and on the expiry of the lease the respondent having been sued as a trespasser was entitled to dispute the title of the plaintiff. The case in Bilas Kunwar v. Desraj Ranjit Singh AIR 1915 PC 96 is however an authority for holding that he is not entitled to dispute the plaintiff's title. Their Lordships of the Judicial Committee of the Privy Council said in that case that Section 116, Evidence Act is perfectly clear on this point and rests on the principle well established by many English cases that a tenant who had been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord.
3. In this case there is no question that the tenant, the defendant, has not restored possession to his landlord. He claimed to be in possession under the superior landlord, the howladars, in whose favour he has executed a kabuliyat subsequent to the expiry of his lease, namely, in 1924. But it is clear that the plaintiff is still in possession of the land through his tenant inasmuch as the landlord sued to evict the plaintiff and the appeal in that case was being heard along with the appeal in this case. It is urged by the respondent that the lease having terminated and the defendant having been sued as a trespasser the tenant's estoppel no longer operates. But it has been held that the tenant's estoppel operates even after the termination of the tenancy. In this connexion we have been referred to the case of Muzibar Rahaman v. Isub Surati : AIR1928Cal546 in which reference is made to several other cases in which this principle has been recognized. It is clearly impossible to hold that immediately on the termination of the tenancy the tenant would be entitled to question his landlord's title. We therefore think that the plaintiff is entitled to khas possession and the decree of the lower appellate Court must be set aside and that of the Court of first instance restored. The plaintiff will recover mesne profits at the rate of Rs. 12 per year with interest at six percent per annum till realization. The plaintiff is entitled to his costs throughout.
4. I agree.